Jacob v President of the Republic of Namibia and Others (HC-MD-CIV-MOT-GEN-2025/00216) [2025] NAHCMD 270 (23 May 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: HC-MD-CIV-MOT-GEN-2025/00216

In the matter between:

JOEL ANDREAS VELIPUFYE JACOB APPLICANT

and

PRESIDENT OF THE REPUBLIC OF NAMIBIA FIRST RESPONDENT

MINISTER OF DEFENCE AND VETERANS AFFAIRS SECOND RESPONDENT

CHIEF OF THE NAMIBIAN DEFENCE FORCE THIRD RESPONDENT

STANLEY !NAWASEB N.O. FOURTH RESPONDENT

Neutral citation: Jacob v President of the Republic of Namibia (HC-MD-CIV-MOT-GEN-2025/00216) [2025] NAHCMD 270 (23 May 2025)

Coram: NARIB AJ

Heard: 20 May 2025

Order: 22 May 2025

Reasons released: 23 May 2025

Flynote: Rule Nisi – Urgent application – Interim interdict against Namibia Defence Force where applicant’s name was removed from list of candidates for training-Interim interdict granted.

Summary: The applicant, as per Part A of his notice of motion, on an urgent basis, sought an interim interdict pending determination of review as per Part B of his notice of motion.

The applicant alleged that he was informed that he was successful for selection for intake of the Namibia Defence Force to commence during 12 to 16 May 2025 and that he should await publication in a newspaper and should then report to Namibia Defence Force at Okahandja to commence training. The fourth respondent did not answer to the allegations in the founding affidavit and appear not to have had an opportunity to consult with his legal practitioners of record and an answering affidavit of the Deputy Executive Director of the Ministry of Defence was filed only during the morning of the hearing, but did not answer to issues of substance.

The court revisited the requirements of urgency, particularly in the light of the requirement that the court must assume that the applicant’s case is a good one and that the applicant’s rights were unlawfully ousted.

Held that, the first requirement of urgency in essence relates to why the applicant should be blamed for the manner in which the application was brought and why the application should for that reason not be heard on an urgent basis.

Held, further that, the second requirement relates to whether the relief sought on an urgent basis or substantially similar relief, providing similar protection, is available in due course.

Held further that, the requirements for urgency were met and that the matter should be heard as one of urgency.

Held further that, in view of the respondent not having had sufficient time to answer, a rule nisi coupled with an interim interdict returnable on a later date is appropriate and that the question of costs should be determined on the return date.

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ORDER

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1. A rule nisi issued calling on the respondents to show cause on 08 July 2025 at 10h00, or as soon thereafter as counsel may be heard why the following orders should not be made final:

(a) That respondents are interdicted and restrained from persisting in the decision to remove the applicant’s name from the list of candidates selected for the Namibia Defence Force recruitment training program which commenced during 12 to 16 May 2025;

(b) The respondents are ordered to reinstate the applicant’s name on the list of candidates selected for the Namibia Defence Force recruitment training program which commenced during 12 to 16 May 2025 and to receive the applicant on or before Monday 26 May 2025 at the Namibia Defence Force facility in Okahandja or any other place where the cohort for training intake was received from 12 to 16 May 2025;

3. The third and fourth respondents shall make reasonable accommodation for the applicant to join and catch up with any training and activities which the applicant may have lost as a result of his name being removed from the list;

(d) The respondents shall pay the costs of this application, jointly and severally, the one paying the others to be absolved.

2. That the orders in 1 (a) to (c) above shall operate as interim interdict having an immediate effect, pending the return date of the rule nisi.

3. The respondents shall, if so advised, file further answering affidavits regarding Part A of the applicant’s notice of motion on or before 11 June 2025.

4. The applicant shall, if so advised, file a further replying affidavit on or before 16 June 2025.

5. The applicant shall file heads of argument on or before 20 June 2025.

6. The respondents shall file heads of argument on or before 27 June 2025.

7. The matter is postponed for hearing on at 10h00 on 08 July 2025 which shall be the return date of the rule nisi.

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JUDGMENT

____________________________________________________________________________

NARIB AJ:

[1] The applicant is Joel Andreas Velipufye Jacob, a 19 year old male who resides at Onamishu Village, Eengodi Constituency in the Oshikoto Region of Namibia. The applicant says that Onamishu Village is situated in a remote rural area where access to reliable internet services is virtually non-existent and that he must travel about five kilometers on foot to the Eengodi Regional Office to access WIFI facilities. According to the applicant, Onamishu Village is situated more than 800 kilometers from Windhoek.

[2] The first respondent is the President of the Republic of Namibia cited in her capacity as the Commander in Chief of the Namibian Defence Force (NDF).

[3] The second respondent is the Minister of Defence and Veterans Affairs.

[4] The third respondent is the Chief of the NDF.

[5] The fourth respondent is Stanley !Nawaseb, cited in his official capacity as the NDF Recruitment Officer for the Oshikoto Region, responsible for overseeing the recruitment process in that region.

[6] The applicant approaches the court on an urgent basis praying for the following relief as per Part A of his notice of motion:

‘1. Condoning the Applicant’s non-compliance with the prescribed periods of time and forms of service provided for in terms of Rules of Court and enrolling and hearing the matter as one of urgency in terms of Rule 73(3) of the Rules of this Honourable Court.

Rule Nisi

2. That a rule nisi be issued calling upon the Third and/or the Second and/or any other respondent to show cause, if any, on a date and at the time to be determined by this Honourable Court under Part B of this application, why an order in the following terms should not be made final:

2.1. Interdicting and restraining the Fourth and/or any other respondent(s) from persisting with the decision to remove the Applicant’s name from the list of candidates selected for the Namibian Defence Force recruitment training program commencing on or about the week of 12-16 May 2025, and directing that the Applicant be reinstated to the Namibian Defence Force program, pending the finalization of the application reviewing that purported decision in Part B.

2.2. Directing that, in the event that the recruitment training program has already commenced by the time the rule nisi is issued, the Respondent make appropriate arrangements for the Applicant to join the program forthwith and be afforded reasonable accommodation to catch up on any training already provided.

3. Directing that the order granted under paragraph 2.1 and 2.2 shall operate with immediate effect and shall serve as interim interdict pending the finalization of Part B of this Application.

4. An order directing that any respondent who opposes this application is liable jointly and severally, the one paying the other to be absolved for the costs of this application.

5. In the event that Part A of this application is dismissed on any basis or struck from the roll for lack of urgency or on any other basis, an order that any respondent who opposes this application is liable jointly and severally, the one paying the other to be absolved for the costs of this application.

6. An order granting the Applicant such further and/or alternative relief as this Honourable Court deems appropriate.’

[7] The application is opposed by all the respondents and the answering affidavit is deposed to by Mr Lennox S Likando, the Deputy Executive Director of the Ministry of Defence.

[8] The applicant is represented by Mr Mhata of Nambili Mhata Legal Practitioners whereas all four respondents are represented by Ms Nghishekwa of the Government Attorney.

[9] In the answering affidavit, the respondents take the point of urgency and the point of non-joinder. Having heard argument on 20 May 2025, I determined that the matter should be heard as one of urgency and that I shall provide my reasons in the judgment. The reasons follow below.

[10] The applicant alleges that the recruit training program for the NDF was scheduled to commence during the week of 12 to16 May 2025, but the application was heard only on 20 May 2025. From what transpired during argument, at least for days have already lapsed from the last day on which the recruits were to report for duty at the designated base.

[11] However, in the answering affidavit, Mr Likando indicated that the successful candidates have already reported to the third respondent, awaiting the training process to be further communicated and thus the required process has already taken place between 12 to 16 May 2025.

[12] If they are still awaiting the training process to be further communicated as at 20 May 2025, the applicant could not have fallen behind to such an extent that he cannot catch up. In any event, as I explain more fully below, for purposes of urgency, I must assume that he will catch up.

[13] Counsel for the respondents submitted that urgency is self-created, because the applicant was aware from 28 April 2025 that successful candidates will have to report to the base between 12 and 16 May 2025, yet waited until 14 May 2025 to bring the application. The main trust of counsel for the respondents’ submission was that the events which the applicant seeks to interdict have already taken place, that the interdict has become moot and in the matter of Menzies Aviation it was held that there is no necessity for a right to be protected if the event has already passed. This must have been in reference to the following dictum in Menzies¹:

‘32. What a bidder is entitled to is that the competing bids will be considered in a fair process. Where this does not happen the bidder can review the process. There is no necessity for this right to be protected by a temporary interdict as the right to a fair process is protected by the review procedure. In fact, the Namibian Constitution underpins the right to review in Art 18 which provides that ‘administrative bodies and administrative officials shall act fairly and reasonably’ and in compliance with the requirements imposed on them by legislation and the common law and that ‘persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress in a court of law’. I accept for the purpose of this judgment, as counsel on both sides accepted it, that the decision of the NAC to award the bid to Paragon was an administrative decision.’

[14] Counsel for the respondents submits that the matter is, on the above basis, no longer urgent, and the court should rather review the matter and refer it back to the third respondent for a new decision.

[15] This argument contradicts a fundamental principle of our law in considering the question of urgency.

[16] Since the decision in Twentieth Century Fox Corporation and Another² the courts must assume that the applicants’ case is a good one and that the respondents was unlawfully infringing the applicant’s rights.

[17] This principle has been applied in this jurisdiction and in South Africa, in many cases³ and I dare say that where it was not applied when the question of urgency was considered, it was in error, often, in conflating the requirements for the grant of an interim interdict with the requirements of urgency.

[18] Accordingly, for present purposes, I must assume that the applicant will succeed in his quest for the interim interdict and must in that light consider the question of urgency. To, at this stage determine that the interdict is no longer viable, or is moot, or that the applicant’s remedy lies in review, and the like, as counsel for the respondents is urging me to do, is to conflate the requirements for an interim interdict with those of urgency. For purposes of urgency, I must assume that it remains viable and that it will be granted.

[19] This goes for both requirements of urgency, that is, the circumstances which the applicant avers renders the matter urgent and the reasons why the applicant claims he could not be afforded substantial redress at a hearing in due course.

[20] In other words, the relief I am concerned with, which I must assume will be granted, is the relief sought on urgent basis. I must then consider whether the applicant has made out a case for urgency. The requirements of urgency must not be confused with the requirement for an interim interdict⁴ that there must be no alternative remedy available to the applicant, or with the requirement of a final interdict that the applicant must demonstrate absence of similar protection by any other ordinary remedy. These two are assumed to be met, therefore cannot be part of the consideration for urgency.

[21] Regarding the second requirement, the question at this stage must thus be whether the relief as sought or in a substantially similar form will be available or viable in due course, and if not, the matter is urgent, of course, subject thereto that the other requirement is met. Here, I cannot consider whether the review relief will be available in due course, because the relief sought on an urgent basis is an interim interdict, pending review. For the second leg of urgency not to be met, the substantial redress in due course must provide protection similar to or substantially similar to the protection that will be provided by the relief sought on an urgent basis. If not, the matter is urgent.

[22] In this matter, it is obvious that review in due course will not provide substantially similar protection like the interdictory relief sought. And I must determine urgency on the assumption that the applicant is entitled to the interdictory relief sought.

[23] It is therefore incongruous that I must import elements of that which I must assume to exist in the determination of urgency. The facts and legal considerations to be considered to determine urgency cannot be the same as that which I must assume to exist for purposes of urgency. Otherwise, the assumption becomes a fallacy, because, then I am assuming nothing.

[24] Furthermore, in regard to the first leg of urgency, it would seem to me, having regard to various authorities⁵ that I must determine whether the applicant is somehow to blame for the deviation from the forms and service required for the matter to be heard as one of urgency and whether I must for that reason exercise my discretion not hear the matter as such.

[25] It is the above considerations, together with the facts set up for urgency in this matter, that drove me to the conclusion that the matter must be heard as one of urgency. I now turn to such facts.

[26] The application was served on the respondents by delivery thereof at the Office of the Government Attorney, at 16h29 on Wednesday, 14 May 2025. According to counsel for the respondents, the matter was allocated to her only on 16 May 2025 at 16h30 and she was able to consult with Mr Likando only on Monday, 19 May 2025. The answering affidavit was thus filed a few minutes before the court was due to commence on 20 May 2025. This necessitated the court having to stand down to consider the version put up in the answering affidavit. As I shall demonstrate below, the answering affidavit is not helpful and it seems to me that the respondents will require more time to properly answer to the urgent relief sought. Why it took the Office of the Government Attorney the whole of 15 May 2025 and most of the working hours of 16 May 2025 to allocate the matter to a legal practitioner is not explained.

[27] Counsel for the respondents indicated that she was not able to consult with the fourth respondent at all. This is understandable considering the limited time that was at her disposal to deal with the matter and the fact that the fourth respondent is responsible for Oshikoto Region and is likely engaged in receiving and orienting recruits who reported to his base.

[28] The applicant says that he learned on 28 April 2025 that his name does not appear on the final list of candidates even though he was initially selected. He then started taking steps immediately, first by calling the fourth respondent. The fourth respondent informed him that they were a lot, a response which the applicant found incomprehensible.

[29] On Friday, 02 May 2025, the applicant visited his father who lives approximately four kilometers from his village and informed him of this predicament. It was then that the idea was spawned to approach counsel for the applicant, who is a distant relative of the applicant’s father. Since Monday, 05 May 2025 was a public holiday, counsel for the applicant was approached on Tuesday, 06 May 2025, and he agreed to assist. The documents required for the application were gathered and forwarded to the counsel for the applicant and a letter of demand was dispatched to the Executive Director of the Ministry of Defence on Thursday, 08 May 2025. The demand was that the applicant be reinstated on the list of recruits or that a detailed response be provided as to why his name was removed.

[30] When no response was forthcoming by 13 May 2025, the applicant travelled to Windhoek and met with his counsel after which the founding papers were settled and filed on 14 May 2025. The respondents were still afforded five days before the matter was heard on 20 May 2025.

[31] Considering the applicant’s age, where he lives and the distance he had to travel to consult with his counsel, the fact that he is unemployed and the effort he had made in bringing this matter to court, I did not find any blameworthy conduct in the manner in which the urgent application was prosecuted on the basis of which I had to refuse to hear the matter on an urgent basis.

[32] The time to report to base has already lapsed and any further delay in the matter would put his chances of ever catching up with his peers in more jeopardy. It is also clear that he would not have substantial redress at a hearing in due course.

[33] It is for these reasons that I, on 20 May 2025, determined that the matter should be enrolled and heard as one of urgency.

[34] I now proceed to consider whether the interim relief sought should be granted.

[35] Counsel for the respondents argued strenuously that the interim relief sought is moot. I do not agree.

[36] In considering whether I should grant the interim interdict I must apply the test as set out in Webster v Mitchell⁶ as follows:

‘The proper manner of approach I consider is to take the facts as set out by the applicant, together with the fact any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant, he should not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to ‘some doubt.’ But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief.’

[37] I now turn to the facts as they appear from the founding and the answering affidavits.

[38] By the time the matter was heard, only four days had lapsed since the last day indicated for reporting to base. By 20 May 2025, when the matter was heard the other recruits were still awaiting further instructions on the training program, which indicates that training had not commenced in earnest and even if it did, not much time had lapsed since then.

[39] Much of applicant’s version supporting the merits of his claim remain uncontradicted. Applicant’s allegations in support for the interim interdict relate to his interaction over the phone with the fourth respondent who did not file an answering affidavit.

[40] The applicant says that after he applied to join the NDF in late 2024, he was informed around 22 January 2025 that he was shortlisted. A copy of the shortlist is attached to the founding affidavit and applicant’s name appears as number 98 under a group of candidates who had to report to Ekulo Secondary School, Oshikoto Region to undergo pre-entry and physical fitness tests.

[41] The person listed for enquiries is Lieutenant Colonel Stanley !Nawaseb and his phone number is provided. According to counsel for the applicant, this is the fourth respondent.

[42] The applicant says that he participated in the entry test which included both fitness test and pre-entry written test at the Ekulo Secondary School and that he successfully completed all the components of the test. He then received a call from the fourth respondent on or about 06 February 2025 and was informed that he passed the test and was instructed to report to Omuthiya Police Station on 07 February 2025 for fingerprint verification. He did so.

[43] According to the applicant, he was again contacted telephonically by the fourth respondent on 10 February 2025 and instructed to report to the Onandjokwe Hospital on 11 February 2025 for a comprehensive medical examination, which he did. He was further instructed to obtain a tax certificate from the Namibia Revenue Agency and did so on 19 March 2025 with the effective date of 12 February 2025. A copy of the tax certificate is also attached to the founding affidavit.

[44] Furthermore, the applicant says that on 16 February 2025 he collected his medical card from Onandjokwe Hospital. The fourth respondent had informed him that the medical examination confirmed that he was in excellent health. He was then instructed together with other successful candidates to await a newspaper announcement that would inform them when to report to Okahandja for commencement of training.

[45] Since the fourth respondent did not file an answering affidavit, the above allegations by the applicant remain unanswered. The answering affidavit by Mr Likando understandably does not address most of these allegations.

[46] Mr Likando says that shortlisted candidates were 3000 and that the second defendant was looking for only 1500 candidates. He points further to the published statement that accompanied the list of potential candidates wherein it was notified that only successful candidates shall proceed to the next phase and will be notified and that the whole process is expected to be completed by 07 March 2025. He says that the applicant was not notified.

[47] Mr Likando further takes the point that the Recruitment Planing Committee, who was responsible for selection process of the shortlisted candidates was not cited in these proceedings and that the Minister of Defence is not privy to all the criteria used by this committee to select the successful candidates, as the committee is independent with its own chain of command for purposes of transparency.

[48] Mr Likando, however, does not state whether the committee is a legal person capable of suing and being sued. No reference is made to any provision under which that committee is established. However, it is apparent from a document which is attached to the answering affidavit of Mr Likando, entitled ‘RECRUITMENT OFFICERS GUIDELINES, DUTIES AND RESPONSIBILITIES’, that recruitment officers are responsible for managing all aspects of the recruitment process and must ensure that procedures are followed in a fair and transparent manner. No reference is made to any committee. I do not find it necessary, at this stage, to finally determine the respondent’s point on joinder. It seems to me, on a prima facie basis, that it should not stand in the way of the applicant’s application for an interim interdict.

[49] Perhaps having realized the inadequacy of the answering papers, counsel for the respondents impermissibly attempted to supplement facts during argument, which I discouraged and in fact stopped. Since the fourth respondent did not file an answering affidavit and the relief sought is in the form of a rule nisi, the respondents may be granted another opportunity to supplement their answering papers.

[50] But for the time being, on the facts as they stand, I am of the view that the applicant is entitled to interim relief. If it bears true that he was informed that he was successful and should await a newspaper announcement that would inform him when to report to Okahandja, an allegation that so far remains uncontradicted, some answer is required from the fourth respondent regarding the circumstances in which his name was removed from that list and perhaps why he was not afforded a hearing heard before that was done.

[51] The requirements for an interim interdict are well-known and I do not intend to rehearse them herein. Suffice it for me to say that the applicant has demonstrated a prima facie right, even if it is open to some doubt, considering that he failed to provide the details of exactly what was said to him having to report to Okahandja.

[52] He further has a well-grounded apprehension of irreparable harm, in that any further delay in his enlistment will mean that the opportunity he may be lawfully entitled to, because he qualified for it and was informed that he will be enlisted, will be forever lost. Considering his personal circumstances which he so ably sets out in his founding papers, that may well be a huge loss to him and his family. He appears to be a bright young man with good pass marks for his Grade 12 examinations and who has foregone an opportunity to commence with studies at the Namibia University of Science and Technology for the 2025 academic year because he wanted to join the NDF. Copies of his admission letter as well as his senior secondary school certificate are attached to his founding papers. His senior secondary certificate indicates that he has four A’s, a C and a D and the A’s were achieved in the subjects of Agriculture, Biology, Mathematics and Physics, albeit at ordinary level. This is no small feat for a learner from rural areas of Namibia.

[53] In view of the order I propose to make, the balance of convenience is also in favour of granting interim relief. I intend to issue a rule nisi, but instead of it being returnable on the date of hearing of the review application as prayed, as per Part B of the notice of motion, I shall order that it be heard on an earlier date, a little more than a month from the date of this order. That will afford the respondents an opportunity to file answering papers and to provide reasons why the applicant’s name was removed from the list or to otherwise respond to his allegations.

[54] The training which the applicant craves may, if he succeeds, put the applicant on a career path that may be life-changing for him and his family, should he be successful. No other remedy is available for him to achieve that goal. If, indeed he met the requirements and was informed that he was successful, he ought to join his peers and to compete equally with them for the opportunities the training provides. There is no other remedy that can provide him with that opportunity, at least not in 2025. That he may reapply next year is no answer because no one knows what the requirements of the next intake will be and whether he will qualify. Neither is the right to claim damages an answer because that does not provide for a potential career opportunity he will otherwise lose.

[55] During argument, I enquired from the parties whether I may grant a mandatory interdict against the respondents for them to be compelled to receive any recruit in the NDF. I afforded the parties an opportunity to research this aspect. Mr Mhata was able to refer me to two authorities one of which is instructive. It is a decision of this court in Nanditume⁷, a matter in which the Minister of Defence was ordered to enlist an applicant after it was found that he was unfairly discriminated against because of his HIV status.

[56] The present applicant is worse off, because, according to him he was not even informed why his name was removed from the list. The respondents say that they required only 1500 recruits, but the applicant was seemingly not told this before his name was removed. If they required only 1500 recruits and the applicant was not one of those, why would he be required to, after having successfully completed the initial test, take all the other steps he sets out in his affidavit? Why require him to, for example, register for tax and to obtain a tax certificate if the respondents knew that he was not part of the 1500, or did they know? Why call him and tell him to await publication of the names in the newspaper, and where to report, if he was not selected, particularly when it was made clear that unsuccessful candidates will not be contacted? These are questions only the fourth respondent can answer.

[57] In view of the uncertainty that prevails regarding the reasons why the applicant’s name does not appear on the list and considering that a further answering affidavit may shed more light on this aspect, I am of the view that the issue of costs should stand over pending the return date of the rule nisi.

[58] I have for the above reasons come to the conclusion that the application for an interim interdict should succeed. I accordingly make the following order:

1. A rule nisi issues calling on the respondents to show cause on 08 July 2025 at 10h00, or as soon thereafter as counsel may be heard why the following orders should not be made final:

(a) That respondents are interdicted and restrained from persisting in the decision to remove the applicant’s name from the list of candidates selected for the Namibia Defence Force recruitment training program which commenced during 12 to 16 May 2025;

(b) The respondents are ordered to reinstate the applicant’s name on the list of candidates selected for the Namibia Defence Force recruitment training program which commenced during 12 to 16 May 2025 and to receive the applicant on or before Monday 26 May 2025 at the Namibia Defence Force facility in Okahandja or any other place where the cohort for training intake was received from 12 to 16 May 2025;

3. The third and fourth respondents shall make reasonable accommodation for the applicant to join and catch up with any training and activities which the applicant may have lost as a result of his name being removed from the list;

(d) The respondents shall pay the costs of this application, jointly and severally, the one paying the others to be absolved.

2. That the orders in 1 (a) to (c) above shall operate as interim interdict having an immediate effect, pending the return date of the rule nisi.

3. The respondents shall, if so advised, file further answering affidavits regarding Part A of the applicant’s notice of motion on or before 11 June 2025.

4. The applicant shall, if so advised, file a further replying affidavit on or before 16 June 2025.

5. The applicant shall file heads of argument on or before 20 June 2025.

6. The respondents shall file heads of argument on or before 27 June 2025.

7. The matter is postponed for hearing on at 10h00 on 08 July 2025 which shall be the return date of the rule nisi.

______________________

G Narib

Acting Judge

APPEARANCES

APPLICANT: N Mhata

Of Nambili Mhata Legal Practitioners, Windhoek

RESPONDENTS: R Nghishekwa

Of the Office of the Government Attorney, Windhoek